Margolies v. Millington et al
RULING denying 16 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Janet C. Hall on 5/15/2017. (Lewis, D)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MICHAEL MARGOLIES, JR.,
DARREN MILLINGTON, ET AL.
CIVIL CASE NO.
MAY 15, 2017
RULING RE: MOTION TO DISMISS (DOC. NO. 16)
Now before the court is the Motion to Dismiss the Complaint of the defendants
Darren Millington (“Mr. Millington”), Courtney A. Millington (“Ms. Millington”), and William
M. Agresta. Mot. to Dismiss (Doc. No. 16). The action arises from an altercation
between Margolies and the defendants at a school Halloween party, and a criminal
action against Margolies arising therefrom.
The defendants bring this Motion to Dismiss (Doc. No. 16) under Rules 12(b)(1)
and 12(b)(6), asserting that the Amended Complaint fails to state a federal claim, and
that the court lacks subject matter jurisdiction over the state claims. Defs.’ Mot. to
Dismiss pursuant to FRCP 12(b)(1) and 12(b)(6) (Doc. No. 16); Defs.’ Mem. In Support
of their Mot. to Dismiss Pursuant to FRCP 12(b)(1) and 12(b)(6) (Defs.’ Mem.) (Doc. No.
17). Margolies opposes the Motion, arguing that the Amended Complaint does state a
federal claim for relief, and the court should hear the state law claims under the
supplemental jurisdiction statute. Br. in Opposition to Mot. to Dismiss (“Margolies’ Br.”)
(Doc. No. 19).
For the reasons that follow, the Motion to Dismiss is DENIED. The court
concludes that the Amended Complaint does properly state a claim under section 1983
of title 42 of the United States Code against Mr. Millington and Ms. Millington. Because
the court has jurisdiction over the federal claims, and the state claims arise from the
same common nexus of fact as the federal claims, the court concludes that it has
supplemental jurisdiction over the state claims. See 28 U.S.C. 1367.
Before the court can turn to the substance of the Motion, the court must first
address the issue of which Complaint is operative. Although the Motion to Dismiss was
addressed to the original Complaint, Doc. No. 1, after the Motion to Dismiss was joined,
Margolies docketed an Amended Complaint. See Doc. No. 21. This Amended
Complaint was docketed without permission of the court or any allegation of consent by
the defendants. Margolies also made no representation as to whether he believed that
the Amended Complaint mooted any of the defendants’ arguments in the Motion to
By the same token, the defendants have not objected to the Amended
Complaint, nor alerted the court that they would like to update or file a new Motion to
Dismiss. Indeed, the Joint Status Report acknowledges that an Amended Complaint
has been filed, and that a Motion to Dismiss is currently pending. See Joint Status
Report (Doc. No. 22). The Amended Complaint only changes a single paragraph, now
alleging that, during the assault, Mr. Millington told Margolies not to fight back because
Mr. Millington was a police officer. Am. Compl. at ¶ 13.
Lacking any objection, and cognizant of Rule 15’s command to grant leave to
amend the complaint “when justice so requires,” the court will construe the Amended
Complaint as a Motion to Amend the Complaint, and grant it. Thus, the operative
complaint is the Amended Complaint. Doc. No. 21. The court reminds counsel that, if
they should desire to amend the Amended Complaint, they must request consent of the
defendants or motion for leave of the court, as required by Rule 15(a). See Fed. R. Civ.
The similarity of the Complaint and the Amended Complaint permits the court to
analyze the Motion to Dismiss’s arguments as they apply to the Amended Complaint
even though the arguments were originally made against the Complaint. Compare
Compl. (Doc. No. 1) with Am. Compl. (Doc. No. 21). The court will thus refer to the
Amended Complaint throughout this opinion, as it is the operative Complaint.
The following factual allegations are taken from the Amended Complaint and,
therefore the court will accept them as true for the purposes of the Motion to Dismiss.
See Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013) (setting forth the
standard of review for a motion to dismiss).1
Courtney Millington is the ex-wife of the plaintiff, Michael Margolies, Jr. Am.
Compl. at ¶ 8. They have three children together, and currently share joint custody of
The defendants’ Memorandum includes three pages of additional facts, though these facts are
unsupported by any affidavit or sworn statement. The court does not incorporate these facts into its
analysis because a motion to dismiss is decided based on the facts in the operative Complaint, not facts
as alleged by the defendant. See Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (In analyzing a
motion to dismiss, “the district court is normally required to look only to the allegations on the face of the
complaint.”); see also Friedl v. City of New York, 210 F.3d 79, 83-84 (2d Cir. 2000) (“[A] district court errs
when it considers affidavits and exhibits submitted by defendants or relies on factual allegations
contained in legal briefs or memoranda in ruling on a 12(b)(6) motion to dismiss.”) (internal citations
them. Id. at ¶¶ 8, 10. Ms. Millington is now married to Darren Millington, who is
currently an officer in the Trumbull Police Department. Id. at ¶ 4. On October 30, 2015,
Margolies and the defendants, as well as the three children, were at a Halloween party
at the Daniels Farm Elementary School in Trumbull, Connecticut. Id. at ¶ 11. Margolies
attempted to leave the party with his children, but Mr. Millington grabbed Margolies, put
Margolies in a headlock, and then proceeded, with the assistance of Ms. Millington and
Agresta, to beat and kick him. Id. at ¶ 13. During this, Mr. Millington told Margolies,
“You know who I am. You know I’m a police officer. Don’t fight back.” Id.
After this incident, the three defendants together filed sworn statements with the
Trumbull police, accusing Margolies of assaulting Ms. Millington and endangering the
children. Id. at ¶ 14. On the basis of these statements, Margolies was arrested for risk
of injury to a minor, assault in the third degree, and breach of peace. Id. at 15. All of
these charges were dismissed on September 29, 2016. Id. at 16.
The Amended Complaint alleges that Mr. and Ms. Millington together subjected
Margolies to unreasonable force in violation of the Fourth Amendment, as enforceable
through section 1983 of title 42 of the United States Code. Id. at 19. It further alleges
that Mr. Millington subjected Margolies to malicious prosecution in violation of the
Fourth Amendment, as enforceable through section 1983. Id. at 20. Finally, the
Amended Complaint alleges that all of the defendants subjected Margolies to assault
and battery, defamation, malicious prosecution, intentional infliction of emotional
distress, and negligent infliction of emotional distress, all in violation of Connecticut law.
Id. at ¶¶ 21-25.
In reviewing a Motion to Dismiss pursuant to Rule 12(b)(6), the court “accept[s]
all factual allegations as true and draw[s] all reasonable inferences in favor of the
plaintiff.” Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561,
566 (2d Cir. 2016) (citing City of Pontiac Policemen's & Firemen's Ret. Sys. v. UBS AG,
752 F.3d 173, 179 (2d Cir. 2014)). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” In re Actos End-Payor Antitrust Litig., 848 F.3d 89, 97 (2d Cir.
2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. The court is not bound to accept as true legal conclusions. Id.
Amended Complaint States a Federal Claim against Darren Millington
The necessary elements of a section 1983 violation are: “(1) whether the conduct
complained of was committed by a person acting under color of state law; and (2)
whether this conduct deprive a person of rights, privileges or immunities secured by the
Constitution or laws of the United States.” Parratt v. Taylor, 451 U.S. 527, 535 (1981)
overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). The
defendants argue that the Amended Complaint fails to state a claim under section 1983
of title 42 of the United States Code against Mr. Millington. Defs.’ Mem. at 7-10.
The determination of whether an officer was acting under color of law is more
nuanced than whether the officer was wearing his uniform or on duty; instead it is
determined by reference to the “nature of the officer’s act, not simply his duty status.”
Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994). Any act that was not under the
pretense of law, but was instead “within the ambit of [the officer’s] personal pursuits”
cannot be considered under color of law. Id. (citing Screws v. United States, 325 U.S.
91, 111 (1945)).
Thus, the central concern is with the use of “power possessed by virtue of state
law,” and constitutional violations “made possible only because the wrongdoer is
clothed with the authority of state law.” Monsky v. Moraghan, 127 F.3d 243, 245 (2d
Cir. 1997). Even if the underlying event occurred while the officer was off-duty and
engaged in his private affairs, the officer’s acts can be described as under color of law if
the officer used the authority of the state in connection with the event. Jocks v.
Tavernier, 316 F.3d 128, 134 (2d Cir. 2003) (determining that an officer acted under of
color of law when he identified himself as a police officer and used his service weapon
during a roadside argument). The ultimate question is whether the defendant abused
the power of the state, regardless of whether the defendant’s ultimate aim was personal
or official. See United States v. Giordano, 442 F.3d 30, 43-44 (2d Cir. 2006) (“[W]e
have found that officials acted under color of law when their misuse of official power
made the commission of a constitutional wrong possible, even though the official
committed abusive acts for personal reasons far removed from the scope of official
The specific facts of Pitchell inform the boundary between acts which are purely
personal and those which are done with the authority of the state. In that matter, an offduty police officer shot a civilian with his personal weapon, but police-issued
ammunition, during a political dispute. Id. at 546. The court determined that the officer,
in the use of his personal weapon in his own home, did not invoke the authority of the
police department. Id. at 548. Mr. Millington asserts that the original Complaint offered
no facts to show that he invoked the authority of the police department, and therefore he
did not act under color of state law. Defs.’ Mem. at 10.
The Complaint as amended, however, makes specific allegations that Mr.
Millington told Margolies, “You know who I am. You know I’m a police officer. Don’t fight
back.” Am. Compl. at ¶ 13. These facts, if proven, clearly allege that Mr. Millington
invoke the authority of the state in his altercation with Margolies. Accepting the facts in
the Amended Complaint as true, and making all inferences favorable to the plaintiff, the
Amended Complaint makes factual allegations that support the claim that Mr. Millington
invoked the authority of the state during the altercation to further incapacitate Margolies
by informing him not to resist because he was an officer, and therefore acted under
color of state law. Id.; see Iqbal, 556 U.S. at 678. Under Connecticut law, self-defense
is not justification for resisting arrest by a peace officer, regardless of the legality of the
arrest and so, by allegedly invoking the power of the state, Mr. Millington effectively
prevented Margolies from defending himself without subjecting himself to further
charges. Conn. Gen. Stat. §53a-23; see State v. Nelson, 144 Conn. App. 678, 69
(2013) (“Under our self-defense statute, General Statutes § 53a-23, the illegality of an
arrest is not a defense to a charge of interfering with an officer pursuant to § 53-167a.”).
Because the Amended Complaint adequately states a claim that Mr. Millington
acted under color of law in the dispute at the Halloween party, the defendants’ Motion to
Dismiss the federal claims against Mr. Millington is denied.
Amended Complaint States a Federal Claim Against Courtney Millington
The defendants also assert that the Amended Complaint fails to state a claim as
to Ms. Millington because it fails to allege that she was acting under color of law. Defs.’
Mem. at 10-12. Ms. Millington was never employed as a police officer, and the only
relationship she had to state authority is through her husband, Mr. Millington. See Am.
Compl. at 4-5 (alleging that, although Ms. Millington was a civilian, she had a
relationship of power, influence and authority over Mr. Millington that she was acting
under color of law). Thus, in order for the Amended Complaint to properly state a claim
against Ms. Millington, it must contain sufficient factual allegations to allow for the
plausible inference that she too was acting under color of state law. See Parratt, 451
U.S. at 535.
Section 1983 of title 42 of the United States Code “imposes liability on anyone
who, under color of state law, deprives a person ‘of any rights, privileges, or immunities
secured by the Constitution and laws.’” K & A Radiologic Tech. Servs., Inc. v. Comm’r
of Dep’t of Health, 189 F.3d 273, 280 (2d Cir. 1999) (internal citation omitted). This
includes private actors, so long as they “jointly engaged with state officials in the
challenged action.” Dennis v. Sparks, 449 U.S. 24, 27-28 (1980). The court must
determine whether Ms. Millington acted jointly with Mr. Millington in his use of state
power, such that she can properly be described as acting under color of state law. See
Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288,
295-96 (2001) (acknowledging that the determination of whether “seemingly private
behavior” can be properly attributed to the state is “a matter of normative judgment”
made with “criteria [that] lack rigid simplicity.”).
The Amended Complaint only alleges two relevant facts with regards to the
federal claim that Ms. Millington subjected Margolies to unreasonable force in violation
of his rights under the Fourth Amendment. Am. Compl. at ¶ 19. First, the Amended
Complaint states that Mr. Millington and Ms. Millington were married, and by virtue of
that relationship, Ms. Millington exercised power, influence and authority over Mr.
Millington. Am. Compl. at ¶¶ 4-5. Second, the Amended Complaint states that Mr. and
Ms. Millington were at the Halloween party on the evening of October 30, 2015, and
together kicked, beat, and assaulted Margolies. Am. Compl. at ¶¶ 11, 13. The
Amended Complaint also states that, “the defendants acted jointly and in concert with
each other,” but this is a legal conclusion, and as such the court is not bound to accept
it for the purposes of determining the Motion to Dismiss. Iqbal, 556 U.S. at 678.
Viewing the allegations in the Amended Complaint in the light most favorable to
Margolies, and drawing all inferences in his favor, the Amended Complaint does state a
claim against Ms. Millington. See Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset
Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). The factual allegations, barebones as they
are, allege that Mr. Millington invoked his state authority in the assault of Margolies, and
that Ms. Millington acted jointly with Mr. Millington in that assault. This is not Ginsberg
v. Healey Car & Truck Leasing, where the private party’s act consisted of requesting
police assistance and informing the police of the background of the incident. 189 F.3d
268, 271-72 (2d Cir. 1999). The Amended Complaint alleges that Ms. Millington
actively joined with Mr. Millington in his use of state power to beat and kick Margolies
and as such, states a claim under section 1983 of title 42 of the United States Code.
Court Will Exercise Supplemental Jurisdiction Over the State Claims
Finally, the defendants argue that the court does not have subject matter
jurisdiction over Agresta because no federal claims are brought against him. Defs.’
Mem. at 13. The defendants further argue that the court should not exercise pendant
jurisdiction, without mentioning the relevant jurisdictional statute. Id. at 14. This court
has subject matter jurisdiction over “all claims that are so related to claims in the action
within [the court’s] original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution. Such supplemental
jurisdiction shall include claims that involve the joinder or intervention of additional
parties.” 28 U.S.C. § 1367(a).
The court has determined that the Amended Complaint plausibly alleges federal
claims against Mr. and Ms. Millington. The state claims against Mr. and Ms. Millington,
as well as Mr. Agresta, all arise from a “common nucleus of operative fact” such that it is
clear that they are part of the same case or controversy. See Briarpatch Ltd., L.P. v.
Phoenix Pictures, Inc., 373 F.3d 296, 308 (2d Cir. 2004) (explaining that a common
nucleus of operative fact can exist “even if the state law claim is asserted against a
party different from the one named in the federal claim.”). All three defendants are
alleged to have been involved in beating Margolies, and all three defendants are alleged
to have given statements that led to his arrest. Am. Compl. at ¶¶ 13-15. Thus, the
court has subject matter jurisdiction over the state claims under section 1367(a). The
defendants make no arguments why the court should decline to exercise this jurisdiction
under section 1367(c). See Defs.’ Mem. at 13-14.
The defendants’ Motion does not reference section 1367, and therefore provides
no reasons why the court should decline to exercise supplemental jurisdiction under
section 1367(c). 28 U.S.C. § 1367(c). The court does not find that any of the reasons
should not exercise its subject matter jurisdiction over the defendants, the Motion to
Dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1) is denied.
For the foregoing reasons, the defendants’ Motion to Dismiss (Doc. No. 16) is
Dated at New Haven, Connecticut this 15th day of May, 2017.
/s/ Janet C. Hall
Janet C. Hall
United States District Judge
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